City of Johannesburg - Draft Problem Property Bylaws
The City of Johannesburg (“City”) has recently published a draft “By-law on Problem Properties” document (“bylaws”). Problem Properties are defined to include any part of a building or structure located in the City, and which fit the criteria set out in clause 7(1) of the bylaws. Section 7(1) is a long list, which includes criteria such as whether the property is abandoned, hijacked, overcrowded, illegally connected, illegally occupied, a dumping site, structurally unsound, or a threat to the safety of the public for health or safety reasons, and where rates/taxes/service charges haven’t been paid for any 3 out of the preceding 12 months, the structures on the property are not legally compliant, or has no service supply.
Powers of the City in respect of a problem property
The bylaws give the City the power to issue a notice declaring a property to be a “problem property” and inviting any interested party to submit reasons why it should not be so declared. If the City decides to declare it a problem property, it does so by issuing a notice stating such. The City can then make application to court to appoint a person as the administrator, who will then assume all the powers in law of the person who ought to have been responsible for the property.
Although the idea of a policy to deal comprehensively with problem properties is to be welcomed, the bylaws appear to have been hastily compiled without giving any real thought to the implications of same. For example, the bylaws completely fail to address the issue of supply terminations. This is probably the most potent weapon in the City’s arsenal to address problem properties, but bizarrely it is not mentioned at all. Another glaring omission is the failure to suspend the City’s powers in relation to problem properties where the property owner has a valid, revenue related query pending with the City in relation to the property. The billing crises is well documented and it would be unlawful to subject a property owner to the power of the City to declare and deal with a property as a problem property, where in fact, it is only a billing error on the City’s systems that renders the property a problem.
Remedies extending beyond scope of delegated powers
A further problem with the bylaws is that it attempts to create a new remedy for the City – namely the ability to have an administrator appointed over a problem property – where currently there is no provision for this in our law whatsoever. Legally, the City can make its own bylaws regulating its own policy in relation to buildings in its jurisdiction, but it is not authorized to create new laws, especially not laws which infringe constitutional rights. Only Parliament could legislate such a remedy into existence, but then only within the constraints of the Constitution.
Cost recovery impractical
The bylaws further provide that the administrator must recover the costs of rehabilitating and running the property, from the ‘responsible person’. This is non-sensical as the likely reason for the appointment of an administrator, would be that the responsible person is AWOL or otherwise cannot afford to run the property. The bylaws also empower the administrator to collect rental and other charges from tenants, which would violate the owner’s common law and constitutional rights to property, and would violate existing cession of rental and other contractual arrangements owners may have in place with their mortgagees and others.
No review/appeal procedure
Another issue is that the City’s proposed wide ranging powers are virtually unchecked, in the sense that no provision is made for internal review/appeal procedure for decisions taken in terms of this bylaw. This means that a person aggrieved needs to bring an expensive review application to the High Court, to seek relief from biased, unreasonable or otherwise arbitrary decisions.
There are more than adequate laws and bylaws in place to regulate and police properties and property owners in the City of Johannesburg. The City simply needs to start applying existing laws. Serious revision is necessary before these bylaws can be published, failing which the City will be challenged for attempting to exercise self-made, unconstitutional powers, promulgated ultra vires its authority.
Source: David Hepburn, partner and Chantelle Gladwin, partner
Courtesy: Agent - The Official Publication of the Estate Agency Affairs Board